Case Document

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DCCC986/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.986 OF 2009

_____________

	HKSAR
	v
	WU CHI KWONG	Defendant

_____________

Before:

Douglas T.H. Yau, District Judge

Date:

9^th December 2009 at 10:38am

Present:

Mr. Andrew Cheng, Public Prosecutor for HKSAR
Mr. Wong Hin Lee, instructed by M/S Chan, Wong & Lam assigned by DLA, For defendant

Charge:

Trafficking in dangerous drugs (販運危險藥物)

REASONS FOR SENTENCE

1.The defendant faces one charge of trafficking in dangerous drugs, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. It is alleged that he on 3^rd July 2009 at room 2818, Heng Fung House, Heng On Estate, Ma On Shan, New Territories, Hong Kong, unlawfully trafficked in dangerous drugs, namely 15.24 grammes of a powder containing 12.88g of ketamine and 0.09g of a crystalline solid containing methamphetamine hydrochloride.

2.The defendant pleaded guilty to the charge, admitted to the summary of facts and was duly convicted.

Summary of facts

3.Police conducted an anti-dangerous drugs operation at 28^th floor of the charge address on the evening of 3^rd July 2009. At about 7:32pm, pw1, an officer who laid in ambush there saw the defendant came out from room 2818. Pw1 intercepted the defendant outside the room.

4.The defendant opened the iron gate and door of room 2818 upon the execution of a police search warrant. The defendant’s mother was in the room at that time.

5.Pw1 conducted a house search and found a paper box in the kitchen. Inside the paper box were 7 packets of suspected dangerous drugs (exhibit P-1), 1 packet of suspected dangerous drugs (exhibit P-2), an electronic scale and 2 empty transparent plastic bags.

6.The defendant claimed under caution that exhibit P-1 contained ketamine, that part of it was for the defendant’s own consumption and part of it would be sold to others. The defendant further admitted that exhibit P-2 contained ‘ice’ and that it served as a painkiller. The defendant admitted that he would weigh the ketamine using the electronic scale before selling them.

7.Pw1 arrested the defendant and cautioned him again. The defendant said under caution, “Ah sir, part of the ketamine is for my own consumption and part of it is for selling to the people in Heng On Estate.”

8.Pw1 conducted a cautioned interview with the defendant at 8:19pm on the same day, where the defendant admitted the following. The defendant bought ketamine from others for his own consumption, but if his friends asked for ketamine he would sell some to them at HK$100 per gram. The defendant bought exhibits P-1 and P-2 on 2^nd July 2009 at $1,800 and $600 respectively. The empty plastic bags were for storing the ketamine. The defendant would weigh the ketamine with the electronic scale and then place them into smaller packets since it would be more convenient to carry around and to sell to his friends.

9.Exhibits P-1 and P-2 were examined by Government Chemist who certified their narcotic contents as stated in the Certificate and set out in the charge.

Previous convictions

10.The defendant had 5 previous appearances in court resulting in 10 convictions, with 2 of those being drugs related. The defendant was last sentenced to the DATC for one count of possession of dangerous drugs in January 2006.

Mitigation

11.The defendant is 34 years old. According to the antecedent statement, he was not married but used to live with his girlfriend who gave him two sons. They have since separated and his two sons are living with the defendant’s ex-girlfriend. The defendant lives with his mother and father who are in their 60s and 80s respectively. Both are not of very good health and have trouble moving around. The defendant has a younger sister who also lives with them. Although she is working, because of the low wages, she is receiving some public assistance.

12.The defendant was educated up to form 1. He had been working as an apprentice at goldsmith shop and bakery shop. He had held various other positions including working as a kitchen staff, waiter, deliveryman, karaoke waiter, etc. He became unemployed in 2008 upon his arrest.

13.The main thrust of the defendant’s mitigation is that some of the ketamine and the ‘ice’ were for his own consumption. It is submitted that the defendant would consume about 1g of ketamine every other day, and of the 15.24g mixture, about 3-4g would be for his own use. It is also submitted that most of the ‘ice’ would be for pain killing purpose since the defendant suffered from severe back pain. It is Mr. Hin Lee Wong’s submission that the circumstances surrounding this case as well as the defendant’s personal circumstances support the said assertion of drugs usage. Should that be accepted, Mr. Wong submits that a starting point of between 45-48 months should be adopted.

Sentencing tariff

14.The sentencing tariff for trafficking between 10 to 50 grammes of ketamine is 4 to 6 years’ imprisonment after trial: Secretary for Justice v Hii Siew Cheng (許守城) [2009] 1 HKLRD 1, CAAR7/2006.

15.In relation to social trafficking, which the defendant had brought up in his cautioned statement, the Court of Appeal in the same case has the following to say,

We should perhaps repeat what was said in HKSAR v Wong Suet-hau and Anor [2002] 1 HKLRD 69 wherein this court dealt with the approach to be taken to “social trafficking”. The Court of Appeal in that case said:

“51. In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.”

16.In relation to the sentencing of the presence of different narcotic contents in the same charge, the so called cocktail drugs, the Court of Appeal in the case of HKSAR v Yip Wai Yin and Another, CACC 80/2003 set out the ‘individual’ approach and the ‘combined’ approach. I am of the view that in our present case the ‘combined’ approach is the correct approach.

“The methodology of the ‘combined’ approach is first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs…By "the more or most serious drug", we are not referring to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine are found in a cocktail, the more serious drug is taken to be Ice even in terms of quantity, it may be less than the Ketamine.

(4) We have so far used the term 'significant' quantities in a cocktail. This is in contrast to insignificant amounts, in which case the Court may choose to ignore such small quantities for the purpose of sentencing.”

17.I have also taken into consideration the factors mentioned in HKSAR v Wong Suet-hau and another [2002] 1 HKLRD 69 in coming to a decision as to how much of the 12.88g of ketamine was for the defendant’s own consumption.

Sentence

18.Sentencing is an imprecise art. Once the applicable authorities have been taken into consideration, it is for the sentencing judge to take into account all the relevant circumstances to try to come to a sensible decision. There cannot be any single formula that would yield a mathematically perfect sentence.

19.Having said that, I will accept the submission put forward by Mr. Wong on behalf of the defendant and find that some part of the 12.88g of ketamine was for the defendant’s own consumption. It is Mr. Wong’s submission that about 3-4g of the original mixture was for the defendant’s own consumption. Taking into consideration the circumstances surrounding the finding of the dangerous drugs and the previous stays of the defendant at the DATC I find that Mr. Wong’s submission is acceptable. I find that it is fair to say in that case that of the 12.88g contents, 10g can safely be said to be for the purpose of trafficking.

20.As for the 0.09g of ‘ice’, I find that it is of such a small amount that it can be categorized as being an ‘insignificant amount’ for sentencing purpose as anticipated in the above case of HKSAR v Yip Wai Yin and Another.

21.Taking everything into consideration, including the self-consumption of about 2.88g of the ketamine in the 12.88g charged amount, but also the fact that the defendant is a repeated offender, I will adopt a starting point of 4 years’ imprisonment, granting the defendant the full one third discount for his guilty plea, and I sentence him to 32 months’ imprisonment.